Tinker v. Des Moines School District, 393 U.S. 503 (1969)

Tinker represents the Supreme Court’s broadest and most definitive opinion recognizing free speech rights for students in public schools below the university level. The case arose when three students were suspended from public junior high and high schools for wearing black armbands to protest the Vietnam War. In a strongly worded seven-to-two opinion, the Court held that the suspensions violated the students’ First Amendment free speech rights. The Court held that wearing armbands to symbolically express antiwar views is akin to ‘‘pure speech,’’ and therefore entitled to ‘‘comprehensive’’ First Amendment protection.

The major significance of the case is the Court’s extension of comprehensive First Amendment protection to students who expressed their views at school during the school day. According to the Court, students at a public school possess many of the same free speech rights as adults, so long as they exercise those rights in a nondisruptive manner. The most famous quote from the Court’s majority opinion underscores this point: ‘‘It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’’ This view of the First Amendment also informed the Court’s antiauthoritarian view of the general relationship between students and their schools in a state-operated school system:

In our system, students may not be regarded as closedcircuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

The Court acknowledged some limits on student free speech. The key limitation is that the student speech may not ‘‘substantially interfere with the work of the school or impinge upon the rights of other students.’’ The Court was careful to emphasize, however, that school authorities may not rely on an ‘‘undifferentiated fear or apprehension of disturbance’’ to overcome the students’ right of free speech. According to Tinker, student speech cannot be suppressed simply because the speech is controversial and may instigate a verbal response from other students.

In recent years the Court has retreated somewhat from the strong free speech protection announced in Tinker. Later cases limit the Tinker rule in two important ways. First, in Bethel School District v. Fraser (478 U.S. 675, 1968), the Court upheld the authority of public school officials to sanction students who engage in what the officials deem ‘‘vulgar’’ expression. Second, in Hazelwood School District v. Kuhlmeier (484 U.S. 260, 1988), the Court held that school authorities can regulate student speech when necessary to pursue legitimate educational objectives. In that case the public school authorities were allowed to dictate the content of student contributions to the school newspaper.

The more important aspect of both cases is the Court’s retreat from the broad principles of student speech articulated in Tinker. In contrast to statements made in Tinker, the Court expressed the opinion in Fraser that the First Amendment rights of students in the public schools ‘‘are not automatically coextensive with the rights of adults in other settings.’’ Some commentators have argued that statements such as these cut the heart out of Tinker, although that decision continues to be cited as the definitive statement of student free speech rights when the speech occurs outside the official curriculum and does not include vulgar or obscene statements.

STEVEN G. GEY

References and Further Reading

• Abrams, J. Marc, and S. Mark Goodman, End of an Era? The Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier, Duke L. J. (1988): 706.
• Ingber, Stanley, Socialization, Indoctrination, or the ‘‘Pall of Orthodoxy’’: Value Training in the Public Schools, U. Ill. L. Rev. (1987): 15.
• Nahmod, Sheldon H., Beyond Tinker: The High School as an Educational Public Forum, Harv. C.R.–C.L. L. Rev. 5 (1970): 278.

Cases and Statutes Cited

• Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
• Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

See also Academic Freedom; Bethel School District v. Fraser, 478 U.S. 675 (1986); Campus Hate Speech Codes; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); Student Speech in Public Schools; Teacher Speech in Public Schools; Urofsky v. Gilmore, 216 F. 3d 401 (4th Cir. 2001)